A Fish Story

What do the former employees of Enron and I have in common? According to the Department of Justice, we’re both guilty of the same crime. They spent their nights purging documents in order to hide massive financial fraud. I was accused of disposing of several purportedly undersized red grouper into the Florida surf from which I caught them. On Friday, the Supreme Court will determine whether to hear my case, which asks if my conduct and Enron’s are really covered under the same law.

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In 2007, I was fishing commercially off the coast of Cortez, Fla., in the Gulf of Mexico. A Florida Fish and WildlifeCommissionofficer, cross-deputized by the National Oceanic and Atmospheric Administration (NOAA), boarded my boat to inspect it for safety equipment. Upon boarding the vessel, the officer believed that the fish in my catch were below the 20-inch harvesting minimum for red grouper, as was then required by federal regulations for conservation purposes.

He spent the next four hours inspecting my more than 3,000-fish catch before ordering me to bring 72 allegedly undersized fish back to shore for further inspection. I was issued a civil citation from the state of Florida. The next day, after my commercial fishing boat returned to port, the Florida officer, along with several federal agents with weapons, examined my vessel’s whole catch, finding only 69, not 72, undersized fish.

Nearly three years later, the federal government charged me with the destruction of evidence—yes, fish—to impede a federal investigation. I was subsequently arrested at my home. I have been blacklisted by boat owners who fear federal investigations similar to mine. I am now unable to make a living doing what I love to do.

To this day, I maintain that I committed no crime. I believe the agent originally measured my catch improperly and erratically. Yet even if I had disposed of those three groupers, the federal penalty schedule indicates that I should have incurred a financial penalty beginning at $500 or a restriction on my fishing permit. Instead, the Department of Justice wanted a pound of flesh: They charged me in 2010 with violating the Sarbanes-Oxley Act’s “anti-shredding” restrictions. Passed in the wake of the Enron scandal, this provision aims to prevent white-collar criminals from destroying documents and records with the intent of defrauding investors and the general public. The crime carries a maximum penalty of 20 years in federal prison.

I was convicted of violating Sarbanes-Oxley by a federal jury trial in 2012. The judge sentenced me to 30 days in prison for my crime, followed by three years of supervised release, DNA collection, financial restrictions, travel restrictions and more.

DOJ’s criminal indictment against me is an inappropriate and insulting expansion of federal criminal law. The Sarbanes-Oxley Act was never intended to attack unassuming, hardworking Americans for crimes unrelated to the destruction of records or documents. The legislative history surrounding the law shows that its authors meant it to “close loopholes in the existing criminal laws relating to the destruction or fabrication of evidence and the preservation of financial and audit records.” According to the Senate’s report on the scandal such loopholes contributed to the Enron fiasco, and thus needed to be closed. Congress hoped Sarbanes-Oxley would impede future criminal infractions on Wall Street, not civil infractions like mine—let alone over something as minor as three fish.

The Eleventh Circuit court had a much more expansive reading of the law in my appeal. According to the court’s reasoning, destruction of any “tangible” evidence in a case violates the anti-shredding provision of the Sarbanes-Oxley Act. But what evidence realistically isn’t tangible? I have since asked the U.S. Supreme Court to hear my case and limit the reach of this criminal statute to the white-collar crimes it was intended to punish. The government accountability organization Cause of Action, along with the amicus curiae assistance of Goodwin Proctor LLP and Holland & Knight LLP, have urged the Supreme Court to review my case and determine the federal government’s reach under this criminal provision of the Sarbanes-Oxley Act.

What’s more, following my federal criminal conviction for destroying “tangible objects”—again, fish—I learned that a 2010 congressional investigation had discovered that a NOAA official had allegedly “shred[ded] documents during a federal investigation” concerning “heavy-handed fisheries enforcement.” The irony could not be greater. NOAA is the same federal agency that urged a federal prosecutor to charge me with “shredding” dead fish. Now one of NOAA’s employees stood accused of the same crime.

That case centers on Dale Jones, NOAA’s director of law enforcement. In 2010—three years after the citation that led to my conviction—the Commerce Department released a report finding that Jones’s department had created a “a highly-charged regulatory climate and dysfunctional relationship between NOAA and the fishing industry.” In particular, the report noted that Jones’s office causes “fishermen to feel as though they are being treated like criminals for noncriminal issues.”

Jones did his best to prevent this report from seeing the light of day: During the investigation, he personally approved the widespread destruction of files at his agency’s headquarters in Silver Spring, Md. The resulting purge eliminated 75 percent of his files. The Department of Commerce’s Investigator General, Todd Zinser, relayed these facts to Congress during sworn testimony, wryly remarking, “I wonder what the office of law enforcement would do if a fishing company they were investigating had done the same thing?”

The answer, unfortunately, can be found in my criminal prosecution.

As a result of the agency’s overzealousness, I served my 30-day sentence and have lost my job as a boat captain for hire. But where I received a criminal term of imprisonment for my actions, Dale Jones received a promotion. He was removed from his position but never prosecuted under Sarbanes-Oxley for his crimes. He continued to work for the agency today, with a six-figure salaryand a job with additional responsibilities.

It says something about federal criminal law that it can be used against unassuming, hardworking Americans for a state civil matter. It says something else that federal officials can trespass those same laws with impunity.

John Yates lives in Holmes Beach, Fla., with his wife and grandchildren.